LEILA FADEL, HOST:
For more on the future of the government's case against Comey, let's go to Elie Honig. He's a former federal prosecutor and author of the book "When You Come At The King: Inside DOJ's Pursuit Of The President, From Nixon To Trump." Elie, thank you for being back on the program.
ELIE HONIG: Always happy to be with you, Leila. Thanks.
FADEL: So as a former prosecutor, what are your thoughts on the government's missteps here?
HONIG: Well, there are a lot of them, and I think I would group them into two categories.
FADEL: OK.
HONIG: The first one being just sheer competence or, as the case may be, incompetence. And yesterday's hearing, I think, shows us one example of that - this failure to have the full grand jury vote on the revised indictment. The second category I think I would put under the category of bad motives, bad intent. And that would go to the selective and vindictive prosecution argument, which was also on the table yesterday.
And it's important to note, with all these different motions to dismiss that are on the table right now, all James Comey's defense team has to do is win on any one of them, and the case gets dismissed. So it does feel to me like this case is really coming apart at the seams.
FADEL: Do you find the selective and vindictive argument persuasive?
HONIG: I do. I mean, it's important to understand those arguments do get raised by defendants quite frequently.
FADEL: OK.
HONIG: And they almost never succeed. The bar is really high. You have to show as a defendant either that you are being prosecuted solely because of personal animus because somebody in the government - maybe the prosecutor, maybe the president - just despises you and wants to do this for that reason. And then for selective prosecution, you have to show that among other people who did similar things, you are being selected, chosen for political purposes because of your political speech.
Now, people do raise those claims, but they always lose. But the reason I think Comey may not lose and has really the strongest case for selective or vindictive prosecution is because Trump has said it all out loud. You have, of course, the September 20 social media post by Donald Trump ordering Pam Bondi to go after not just Jim Comey but also Letitia James, other Democrats, Adam Schiff.
FADEL: Right.
HONIG: If you look at Jim Comey's motion, he actually attaches a 59-page attachment listing out all of the public attacks by Trump on Comey and by Comey on Trump. So rarely do you have this developed a record of bad blood between the two parties. So I think Comey's got a real shot on that one.
FADEL: Now, as you mentioned, there are several missteps by the government, including the full grand jury not seeing the indictment.
HONIG: Yeah.
FADEL: How unusual is it in a high-profile case like this one to have this many missteps?
HONIG: Well, it's unusual in a high, medium or low-profile case. It's important to understand who Lindsey Halligan is, that she may be an intelligent person. She may be a good lawyer. I don't really know. Let's give her the benefit of the doubt. But she's not a competent prosecutor. Her fourth day on the job, when she got appointed back in September, that is when she indicted this case. She went into a grand jury her fourth day on the job. She started on a Monday - this was a Thursday - and tried to get this indictment in a case. I will tell you, if I went into a grand jury on my fourth day on the job and tried to indict a complicated, high-stakes case like this too, I'm sure I would've screwed up as well.
And let's just understand what we learned yesterday. So Halligan goes into the grand jury with a three-count indictment. The grand jury rejects count one and accepts count two and three. She then - or somebody then - creates a new indictment. Now, important to know she did not fabricate or add language or add charges. She just took out count one, which had been rejected, and basically renumbered the two counts that had been approved. However, any semi-experienced prosecutor would know, let's be safe. Bring it back to the grand jury. Say, OK, folks, this is a new indictment. It reflects the - it got rid of the count you rejected. And take a vote. It would take 10 minutes. Instead, she just brings it to the judge with two grand jurors with her, which is not enough. And now she's created this problem for herself out of a sheer lack of competence.
FADEL: Now, the DOJ filed this case just before the statute of limitations on the alleged crime expired. So if the judge were to dismiss it, would the DOJ be able to recalibrate and then bring it again?
HONIG: So that's a really important point, and the answer's no. Ordinarily, if a judge dismisses on technical grounds, it will be dismissed what we call without prejudice, meaning, OK, we should've brought this new revised indictment back to the grand jury. The judge will dismiss, and then you go and do that, and then you're fine. You're back in business. Here, however, the statute of limitations - the five-year window that you have to charge a case - ran out on September 30 of this year. That's why there was such a mad rush, by the way, on Donald Trump's behalf to get Jim Comey indicted because the testimony that they're saying he gave to Congress that was false was September 30 of 2020. So if this case gets thrown out now, they're out of time. They cannot go back and reindict it.
FADEL: Former federal prosecutor Elie Honig. Thank you so much for your time and your insights.
HONIG: Thanks for having me. Transcript provided by NPR, Copyright NPR.
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